1. When we refer to the "plaintiff" we are speaking of Debra

Killingsworth.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA A. KILLINGSWORTH : CIVIL ACTION

:

v. :

:

JOHN E. POTTER : NO. 05-4271

MEMORANDUM

Bartle, C.J. March 27, 2007

On August 10, 2005, plaintiffs Debra Killingsworth, a

postal worker, and her husband David Killingsworth filed this

action against defendants John E. Potter, Postmaster General,

United States Postal Service, and three postal employees, Louis

Spadaro ("Spadaro"), Glenn Sullivan ("Sullivan"), and Roland

Ragsdale ("Ragsdale"). Plaintiff alleged she suffered sexual 1

harassment as well as retaliation in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Included

in the complaint against the individual defendants were also

state law claims asserting intentional infliction of emotional

distress, assault and battery, and loss of consortium.

In a Memorandum and Order dated March 20, 2006, we

granted summary judgment to defendants on plaintiff's retaliation

claim. The parties subsequently stipulated to the dismissal of

all state law claims against the individual defendants. Since

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 1 of 15
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David Killingsworth had only a derivative state law claim for

loss of consortium, he is no longer a party to this lawsuit. See

Order of April 10, 2006 (Doc. # 15). Before the court is the

motion of the remaining defendant for summary judgment on

plaintiff's now one pending claim of sexual harassment in

violation of Title VII under Rule 56 of the Federal Rules of

Civil Procedure.

I.

Rule 56 permits us to grant summary judgment in a civil

action "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56; see also Celotex Corp.

v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574 (1986). The party moving for summary

judgment must make a showing that no genuine issue of material

fact exists and that the law requires judgment in its favor. 

Liberty Lobby, 477 U.S. at 247-48. We must view all facts in the

light most favorable to the nonmoving party and also draw all

reasonable inferences in that party's favor. Id. at 252-55.

When an employee of the Postal Service believes that he

or she has suffered some form of discrimination in violation of

federal law, he or she must "consult" an EEO counselor "prior to

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 2 of 15
2. The regulations govern procedures in many different federal

agencies. For our purposes, we describe the relevant procedure

in terms of the Postal Service.

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filing a complaint in order to resolve the matter." 29 C.F.R. 2

§ 1614.105(a). The employee "must initiate [such] contact ...

within 45 days" of the alleged discriminatory act or the

effective date of any personnel action. Id. § 1614.105(a)(1). 

This period may be extended by the Postal Service's EEO office

only if the postal employee shows that he or she had not been

notified of the time limits or was not otherwise aware of them,

did not know or should not have known that the discriminatory

action had occurred despite due diligence, was prevented by

circumstances beyond his or her control from contacting a

counselor, or offers any other reason the agency deems

sufficient. See id. § 1614.105(a)(2). Unless the Postal

employee agrees to a longer period of counseling or elects

alternative means of dispute resolution, the EEO counselor at the

Postal facility must inform the aggrieved employee in writing no

less than 30 days after the initial interview of his or her right

to file a discrimination complaint within 15 days of receiving

such notice. Id. § 1614.105(d). If the employee does not comply

with these time limits, an agency is required to dismiss the

entire complaint. Id. § 1614.107(a)(2).

Title VII allows an aggrieved employee to bring a civil

action in federal court only if the employee has first exhausted

the required administrative remedies. 42 U.S.C. § 2000e-16(c). 

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 3 of 15
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The exhaustion requirement is not jurisdictional but rather is a

defense akin to a statute of limitations. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 386, 393 (1982); Anjelino v. New

York Times Co., 200 F.3d 73, 87 (3d Cir. 1999). Therefore, the

defendant bears the burden to establish that the plaintiff failed

to exhaust administrative remedies or did not comply with

applicable time limits. See Williams v. Runyon, 130 F.3d 568,

573 (3d Cir. 1997).

Because the time limitations in Title VII are not

jurisdictional, they may be tolled under appropriate

circumstances. Oshiver v. Levin, Fishbein, Sedran & Berman, 38

F.3d 1380, 1387 (3d Cir. 1994); Robinson v. Dalton, 107 F.3d

1018, 1022 (3d Cir. 1997). Our Court of Appeals has instructed

that tolling may be appropriate where (1) the "defendant has

actively misled the plaintiff respecting the plaintiff's cause of

action," (2) the plaintiff has been "prevented from asserting his

or her rights" in "some extraordinary way," or (3) the plaintiff

has timely asserted his or her rights mistakenly in the wrong

forum. Id. The plaintiff bears the burden of showing the

doctrine of equitable tolling should apply. See Courtney v. La

Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997). Nevertheless, the

Supreme Court has explained that "[f]ederal courts have typically

extended equitable relief only sparingly .... We have generally

been much less forgiving in receiving late filings where the

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 4 of 15
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claimant failed to exercise due diligence in preserving his legal

rights." Irwin v. Department of Veterans Affairs, 498 U.S. 89,

96 (1990); Robinson, 107 F.3d at 1023.

II.

The following facts are undisputed or are stated in the

light most favorable to the nonmovant. Plaintiff has been

employed as a mail processor or supervisor at the Philadelphia

Processing and Distribution Center ("Distribution Center") of the

United States Postal Service ("Postal Service") since January 8,

1994. The Postal Service in Philadelphia employs a Manager of

Human Resources whose office is separate from the Postal

Service's Equal Employment Opportunity Office ("EEO Office"). 

During her employment, plaintiff received training relating to

sexual harassment, as well as other subjects. At all times

relevant to this action, posters detailing employee's EEO rights,

EEO procedures and time limits, as well as the address and

contact information of the Postal Service's EEO office were

placed on bulletin boards and other common employee spaces on all

floors of the Distribution Center where plaintiff worked.

The record shows that in 2003, Spadaro gave plaintiff

his telephone number and began making sexual comments to her. 

Several similar episodes occurred during the winter and became

"more intense" in April, 2004. Spadaro repeatedly gave plaintiff

his telephone number and said he wanted her to call him and "talk

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 5 of 15
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dirty." On one occasion Spadaro told her that he had purchased

"a pair of black stockings" and wanted her to wear them. Spadaro

continued this behavior until September 17, 2004, when she was

taken from the Distribution Center to a hospital. Plaintiff

attempted to return from her absence on November 3, 2004. At

that time Spadaro gave her a piece of paper with his phone number

on it.

In the spring of 2004, Sullivan told Plaintiff that he

would "like to be that mushroom in your [i.e. her] mouth." Prior

to making this statement, plaintiff claims that she did not know

him. That same month, Sullivan followed her to an elevator and,

without consent, kissed her on the lips and touched her

inappropriately. Sullivan asked plaintiff to go to a hotel with

him and made other comments of a sexual nature in May and June of

2004. Plaintiff states that Sullivan's inappropriate behavior

ceased prior to July, 2004.

Finally, plaintiff maintains that Ragsdale began

harassing her in March, 2004. Before that time, plaintiff often

exchanged pleasantries with him because, like the plaintiff, he

was a former marine. She states that she often would give him "a

military buddy hug" or a "hand, arm, or shoulder tag" and that

prior to March, 2004 he did not make any comments to her or in

her presence that she considered sexual or otherwise

inappropriate. In March, 2004, however, Ragsdale made "sexual"

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 6 of 15
3. Plaintiff claims that she had informed Lamb about the

harassing behavior as early as April, 2004 but maintains that she

said he did not want the matter "to get around the post office."

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comments to her and once asked for her phone number. He asked

her if she wanted to "make some money," to which she did not

respond but instead turned and walked away. She also alleges

that Ragsdale kissed her several times without permission, and on

one such occasion in July, 2004 he felt her buttocks when she

turned and walked away.

The record reflects that in July, 2004 the plaintiff

reported Ragsdale's conduct to Joseph Brown, Supervisor of

Distribution Operations. She also went to see Ronald Lamb

("Lamb"), the Employee Assistance Program Supervisor. After 3

making these complaints to her supervisor in July, plaintiff did

not have additional problems with Ragsdale. Nevertheless,

plaintiff did not initiate pre-complaint counseling with the EEO

office.

On September 17, the plaintiff again spoke with Lamb in

his office about her allegations of harassment but during the

meeting suffered a panic attack and was taken to a local

hospital. She stayed in the hospital overnight. Cindy Davis

("Davis"), a postal supervisor, met the plaintiff at the hospital

early in the morning on September 18 to take a statement from her

regarding her harassment allegations. Plaintiff did not give a

statement at the hospital and instead accompanied Davis back to

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 7 of 15
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the Distribution Center. There the two went to a second floor

office where plaintiff recounted her allegations. 

The plaintiff's description about what happened next

has evolved significantly during this case. In her Declaration

of January 27, 2006, filed in support of her opposition to

defendant's motion to dismiss, she briefly summarized her meeting

with Davis on the morning of September 18, 2004, as follows: "At

the post office I was asked to provide a statement regarding the

sexual harassment to Cindy Davis. At that time, I discussed what

I believed was the more harmful harassment." Almost a year

later, on January 17, 2007, during her deposition, plaintiff

testified that she made her statement to Davis on the second

floor of the Distribution Center and that she expected "that the

Post Office would take responsibility for their [sic] employees,

for what their [sic] employees had done and said to me." The

deposition continued:

Q. Okay. Did Ms. Davis tell you anything

about your rights under EEO or anything like

that?

A. No.

Q. Nothing?

A. Not that I recall, no.

The defendant filed the motion for summary judgment currently

before the court on February 15, 2007 on the ground that

plaintiff had not exhausted her administrative remedies in a

timely manner. In support of her response opposing the motion,

plaintiff signed a new Declaration on March 5, 2007, describing

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 8 of 15
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the events of September 18, 2004 differently from what she had

said at her deposition. She now maintains:

Once at the post office, Cynthia Davis took

me to the second floor, where I was asked to

provide a statement regarding my allegations

of sexual harassment. I discussed the sexual

harassment as best that I could.

I was also asked by Cynthia Davis to fill out

paperwork, approximately 8 pages. The forms

included the Postal Service's EEO form

"Information for Pre-Complaint Counseling,"

P.S. Form 2564-A. I believe that Ms. Davis

also had to fill out EEO Complaint in

Discrimination in the Postal Service, PS Form

2565. The first form was the same form that

I filled out on February 25, 2005, to

initiate my EEO Complaint.

This was her first mention of an EEO complaint. Plaintiff has

not explained this abrupt contradiction of her prior declaration

and deposition regarding her meeting with Davis.

Davis testified without dispute that she did not work

in the Postal Service's EEO Office in September, 2004 or

thereafter. She stated that she was not asked by the EEO Office

to interview plaintiff but rather did so at the request of Tommy

Franklin, a postal manager. According to Davis, she did not

provide plaintiff with any EEO forms. She explained that in her

position as a supervisor she did not have copies of the forms

because they are maintained by the EEO Office and that even had

plaintiff handed her EEO forms she would not have accepted them

because the forms must be returned to the EEO office. Using the

notes from the September 18 meeting, Davis typed a statement and

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 9 of 15
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then, at the direction of Human Relations Manager Lisa Jordan

("Jordan"), destroyed her notes. Plaintiff's counsel asked Davis

during her deposition if she had been instructed to destroy

anything else besides her notes. Davis responded "no."

Killingsworth did not return to the Distribution Center

after the September 18 meeting until November 3, 2004, when she

attempted to return to work but could not obtain medical

clearance. Meanwhile, on October 4, 2004, Jordan appointed two

investigators, Shilda Locust ("Locust") and Raymond Ingram

("Ingram") (collectively "the investigators"), to gather the

facts surrounding plaintiff's allegations. On October 5, 2004,

Locust and Ingram went to plaintiff's home to interview her. 

They interviewed both plaintiff and her husband later that fall

at the latter's office. The defendant has submitted affidavits

from both investigators in which they maintain that at no time

did they represent themselves as representatives or counselors

from the EEO Office of the Postal Service but rather said they

were preparing a report for the Manager of Human Resources. They

further state that they never told the plaintiff that they were

filing an EEO complaint on her behalf or that she could not bring

an EEO action herself. However, they did provide her with a copy

of the Postal Service's policy on sexual harassment as well as a

copy of the EEO posters placed around the Distribution Center. 

Plaintiff does not dispute the affidavits from Locust and Ingram

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 10 of 15
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but nevertheless stated in her deposition and March 5 Declaration

that she thought they were EEO investigators because "they was

going to take the statements and make sure everything would be

taken care of" and that they promised to "get to the root [of]

the problem." She does not offer any evidence to support her

assumption that Locust and Ingram worked for the Postal Service's

EEO Office.

As noted above, plaintiff attempted to return to work

on November 3 but could not get medical clearance. While at the

postal facility that day, defendant Louis Spadaro gave plaintiff

his phone number, the final act of alleged discrimination for

purposes of this motion. She returned to work on November 13 and

she remained until March 3, 2005. In late January, 2005, the

plaintiff telephoned Locust and asked whether she worked in the

EEO Office. Locust replied that she did not. It was not until

February 15, 2005 that plaintiff finally initiated formal

counseling with the EEO Office at the Distribution Center. She

filed her formal complaint that same day concerning the instances

of discrimination she alleged took place between April, 2004 and

November 3, 2004. The Postal Service EEO Office dismissed the

plaintiff's complaint on April 7, 2005 for untimeliness because

she had not initiated the EEO administrative process within 45

days after the alleged harassment took place.

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 11 of 15
4. Despite our assumption, there is little, if any, evidence to

support the harassment by Sullivan and Ragsdale "continued" until

November 3. Plaintiff admitted that Sullivan's inappropriate

behavior ceased prior to July, 2004 and did not complain of any

inappropriate behavior from Ragsdale after July, 2004.

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III.

We assume, without deciding, that the plaintiff asserts

a continuing violation of Title VII based on the harassment she

claims to have endured between late 2003 and November 3, 2004.4

See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 

Thus, pursuant to 29 C.F.R. § 1614.105(a), plaintiff was required

to initiate the EEO process forty-five days after November 3 at

the latest, that is, by December 18, 2004. She did not do so

until February 15, 2005, nearly two months after the deadline. 

Therefore, unless plaintiff demonstrates that the extraordinary

remedy of equitable tolling is appropriate, she has failed to

exhaust her administrative remedies and the defendant's motion

for summary judgment must be granted. See Irwin, 498 U.S. at 96. 

Plaintiff attempts to do this by claiming that the Postal Service

actively misled her to think that she had initiated the EEO

process on September 18 when Davis allegedly presented her with

EEO forms. She argues that this entitles her to equitable

tolling or, presumably, shows there are trial-worthy issues of

fact. She offers only her recent Declaration of March 5, 2007 to

support her argument for tolling.

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 12 of 15
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There is no legitimate basis to justify equitable

tolling in this case. Plaintiff's Declaration of March 5, 2007

is of no help to her because it is a "sham" and, therefore, we

will disregard it. In re CitX Corp., Inc., 448 F.3d 672, 679 (3d

Cir. 2006). Our Court of Appeals has held that we may disregard

an affidavit, submitted in opposition to a motion for summary

judgment, which contradicts clear testimony previously given by

the same witness and attempts to explain away or patch up an

earlier deposition in an attempt to create a genuine issue of

material fact. Id. at 679-80 (citing Baer v. Chase, 392 F.3d

609, 624 (3d Cir. 2004)); see also Hackman v. Valley Fair, 932

F.2d 239, 241 (3d Cir. 1991); Martin v. Merrell Dow

Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir. 1988).

In her January 27, 2006 Declaration and her deposition

nearly one year later on January 17, 2007, plaintiff stated under

oath that on September 18 she simply gave a statement to Davis

and that the latter did "nothing" regarding EEO rights. This

testimony was consistent with the affidavits submitted by Davis. 

In response to the defendant's motion for summary judgment on the

ground that she failed to initiate the administrative counseling

process, the plaintiff suddenly and conveniently remembers that

Davis gave her Postal Service Form 2564-A and "believes" that

Davis "had to fill out EEO Complaint in Discrimination in the

Postal Service, P.S. Form 2565." Plaintiff offers no explanation

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 13 of 15
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for her sudden recollection in March, 2007 that she allegedly

completed one form and "believed" she filled out the other and

that after the passage of two and one-half years she recalled the

precise forms just in time to oppose summary judgment when no

such detail was forthcoming in her deposition only two months

beforehand. Absent any explanation from plaintiff, we disregard

her March 5, 2007 Declaration as a "sham" because it contradicts

the clear testimony offered under oath by the plaintiff on two

prior occasions.

Without the March, 2007 Declaration, the plaintiff's

deposition and January, 2006 Declaration are consistent with

Davis' affidavit in all respects relevant to the motion before

us. Plaintiff has failed to meet her burden to show that

equitable tolling is appropriate in this case or to set forth

evidence that shows a genuine issue for trial regarding the

factual basis underlying her request for tolling. Therefore,

plaintiff has failed to exhaust her administrative remedies in a

timely fashion.

Accordingly, we will grant the motion of the defendant 

for summary judgment.

Case 2:05-cv-04271-HB Document 32 Filed 03/27/07 Page 14 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEBRA A. KILLINGSWORTH : CIVIL ACTION

:

v. :

:

JOHN E. POTTER : NO. 05-4271

ORDER

AND NOW, this 27th day of March, 2006, for the reasons

set forth in the accompanying Memorandum, it is hereby ORDERED

that:

(1) the motion of defendant John E. Potter, Postmaster

General, United States Postal Service, for summary judgment is

GRANTED; and

(2) judgment is entered in favor of defendant John E.

Potter, Postmaster General, United States Postal Service, and

against plaintiff Debra A. Killingsworth on her claim of sexual

harassment.

BY THE COURT:

/s/ Harvey Bartle III 

 C.J. 

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